[1] On 27 April 2017 Gilbert J granted the second respondents’ application to strike out Mr Nottingham’s statement of claim in a judicial review of the District Court at Auckland alleging a criminal conspiracy to pervert the course of justice. The Judge ruled that the claim was replete with scandalous and outrageous allegations without any attempt having been made to provide supporting factual particulars, almost all of the relief sought could not be granted in the context of an application for judicial review and that the flaws in the claim were of such a fundamental character that they could not be saved by amendment.

[2] Mr Nottingham did not file a notice of appeal of that judgment within the required time…

Background

[3] In March 2014 Mr Nottingham commenced a private prosecution in the Auckland District Court against the second respondents. Following a Judge alone trial extending over 17 sitting days, on 20 June 2016 Judge Paul dismissed all charges, acquitted the second respondents and made an order that the appellant pay costs totalling $117,000. Mr Nottingham’s application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011 was declined by Davison J.

[5] On 12 September 2016 Mr Nottingham commenced this judicial review proceeding alleging that Judge Paul had conspired with court staff and with the second respondents to defeat the course of justice in order to wrongfully acquit the second respondents of the criminal charges Mr Nottingham had brought against them in the private prosecution.

[8] In the present case the delay of six months is substantial. While the notice of application states there are reasonable grounds including medical reasons for the delay, there is nothing in the extensive materials filed in support of the application that provides any detail of such a reason.

[9] Indeed it is difficult to understand how it could credibly be said that Mr Nottingham was precluded on medical grounds from lodging a simple notice of appeal within the 20 working day period provided in the Court of Appeal (Civil) Rules when he was actively involved in other litigation. On 15, 22 and 23 May 2017 he appeared in the High Court at Auckland in support of the application for leave to appeal heard by Davison J. He also appeared in the High Court on 12 June 2017 in support of an appeal from the District Court at Auckland finding him in contempt of Court for wilfully insulting a judicial officer.

[10] In Almond v Read the Supreme Court stated that a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. One of the examples given of a hopeless appeal was where there was an abuse of process such as a collateral attack on issues finally determined in other proceedings. We consider that Mr Nottingham’s judicial review proceeding is an example of such a collateral attack.

[11] Mr Nottingham’s private prosecution was dismissed. An application for leave to appeal was declined. An application under s 303 to this Court is still extant. In those circumstances we consider the nature of Mr Nottingham’s judicial review proceeding offends the general rule of public policy explained in Hunter.

[12] The implications of this collateral attack by a still further litigation process has obvious relevance to the third and fourth of the Almond v Read considerations.

[13] Having regard to all of these factors we conclude that the interests of justice plainly require that we should decline to exercise the discretion to extend time under r 29A for the filing of an appeal against the judgment of Gilbert J.

Result

[14] The application for an extension of time to appeal is declined. The appellant must pay the second respondents costs for a standard application on a band A basis with usual disbursements.

The latest judgment from the Supreme Court dated 20 November 2018 – Nottingham v Auckland District Court and Honey, Honey and Taka.

[1] Mr Nottingham wanted to appeal to the Court of Appeal against a decision of the High Court. He did not file his notice of appeal within time so applied for an extension of time. The Court of Appeal declined to grant an extension of time. Mr Nottingham seeks leave to appeal out of time to this Court against that decision.

[4] The principles applicable to the Court of Appeal’s decision whether or not to grant an extension of time were set out recently by the Court in Almond v Read. Mr Nottingham does not challenge those principles; rather, he seeks to challenge their application by the Court of Appeal to the particular facts of this case. No point of general or public importance accordingly arises. Nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice. We add that his delay in filing in this Court is unexplained.

[5] For these reasons the application for an extension of time to appeal is dismissed. The applicant is to pay costs of $2,500 to the second respondents.

So a simple judgment, but again using court time and imposing further time and costs on the respondents after an extensive amount of litigation over nearly a decade.

In 2015 Nottingham told me that if ongoing litigation took him ten years he was up for it.

Costs are supposed to be a deterrent to frivolous, vexatious and hopeless litigation, but they don’t deter Nottingham, who has clocked up hundreds of thousands of dollars in costs awarded against him which led to him being adjudicated bankrupt in September – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018]. I was involved in that proceeding and am owed court awarded costs by Nottingham for another failed private prosecution.

I met with the Safe and Effective Justice Advisory Group on Monday to have my say, making suggestions on what I want from the criminal justice system and and how we might make it better. This focused on much of what is again highlighted in this judgment – successive courts have allowed Nottingham to proceed through multiple stages of litigation, incessantly breaching laws, court rules and timetables, and not paying costs that are supposed to deter these sorts of abuse of the judicial system.

The Advisory group will make recommendations to the Minister of Justice next year, and then it is over to the Minister, Cabinet and Parliament as to what they change.

As per what is highlighted above, requiring judges to enforce procedural legislation and timetables could make a significant difference in limiting vexatious and hopeless litigation.

Another fail for Dermot Nottingham, this time the Supreme Court declining leave to appeal. This is entirely predictable, as he was seeking leave to appeal a Court of Appeal decision that said they had no jurisdiction to overturn the High Court declining leave to appeal. More wasting of court time.

Costs of $2500 were awarded against Nottingham, but as he has been insolvent for some time (probably years) and was adjudicated bankrupt in September he is unlikely to be able to pay these, on top of the quarter of a million dollars in various court costs he already owes.

Costs are supposed to be a deterrent to vexatious and hopeless litigation but Nottingham continues to file proceedings regardless. I don’t know if he is ignorant of the judicial processes (he shouldn’t be, he has extensive experience with it) or if it is deliberate abuses of processes as part of campaigns of harassment against various people.

[1] The applicant seeks leave to appeal against a decision of the Court of Appeal in which he was refused leave to appeal against two High Court decisions. Both had their origins in a private prosecution brought by the applicant against the three respondents in the District Court. All charges were dismissed by Judge Paul and he ordered the applicant to pay costs totalling $117,000 under the Costs in Criminal Cases Act 1967.

[2] The applicant sought leave to appeal against Judge Paul’s decision dismissing the charges and the award of costs.

[3] In the first of the High Court decisions, Paul Davison J refused leave to appeal and, in doing so, he addressed directly the costs argument.

[6] In dealing with the challenge to the judgment of Downs J, the Court concluded that there is no right of appeal to the Court of Appeal from such a decision, citing a number of cases decided under similar provisions of the Summary Proceedings Act 1957. In absence of a right of appeal, the Court found it had no jurisdiction to hear a challenge to the judgment of Downs J.

So the court (Court of Appeal) has no jurisdiction to overturn a lower a court (High Court) decision declining leave to appeal a lower court (District Court).

[7] In support of his application for leave to appeal to this Court, in respect of the judgment of Paul Davison J, the applicant repeats the submissions advanced to and rejected by the Court of Appeal.

[8] Although the judgment of Paul Davison J is lengthy, it is perfectly clear that he dealt with the case as an application for leave to appeal under s 296 and not as a substantive appeal. The order he made was to dismiss the application for leave to appeal. For the reasons given by the Court of Appeal, that decision was final. It was not susceptible to challenge in the Court of Appeal.

[9] We are likewise of the view that there was no jurisdiction to challenge in the Court of Appeal the decision by Downs J to refuse an extension of time.

[10] This Court relevantly has jurisdiction to deal only with appeals authorised by Part 6 of the Criminal Procedure Act. The proposed appeal is not within any head of jurisdiction provided under that Act. As to this, we note that s 213 to which we have already referred provides that an appeal court’s decision to give or refuse leave is final unless otherwise expressly provided for. This provision is as applicable to the Supreme Court as it is to the Court of Appeal and makes it clear that we do not have jurisdiction to entertain appeals against decisions of the Court of Appeal to refuse leave.

[11] The application for leave to appeal is dismissed. The applicant is to pay the respondents costs of $2,500.

So that should be the end of the legal line for Nottingham in this lengthy litigation.

[3] In March 2014 Mr Nottingham commenced a private prosecution in the Auckland District Court against the second respondents. Following a Judge alone trial extending over 17 sitting days, on 20 June 2016 Judge Paul dismissed all charges, acquitted the second respondents and made an order that the appellant pay costs totalling $117,000. Mr Nottingham’s application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011 was declined by Davison J.

[4] The prequel to the criminal proceedings were complaints by both Mr Nottingham and Mr Honey to the Real Estate Agents Authority which culminated in a decision of the Real Estate Agents Disciplinary Tribunal, an appeal to the High Court and a further appeal to this Court.

So this relates to a failed prosecution that began over four and a half years ago.

And that relates to even longer running litigation – it started with a business deal in 2009 that led to:

[4] In early 2011, Mr Dermot Nottingham lodged a complaint on behalf of PBRL with the Real Estate Agents Authority (the REAA) alleging misconduct by Mr Honey…

In July Nottingham was sentenced after being convicted on two breaches of non-publication orders and five charges of criminal harassment. From the sentencing notes:

[16] Variously, the conduct alleged in respect of the five complainants, and differently as between those five complainants, can be characterised as a combination of some or all of the following:

…

(g) Engaging in or threatening to engage in vexatious litigation.

[24] It was plain to me from the evidence that a number of these courses of conduct started with Mr Nottingham crossing the path of the individual complainant, either in his own capacity or on behalf of another individual, acting as their advocate.

[53] In his written submissions, Mr Nottingham makes it plain that he disagrees with the findings of the jury and challenges many of the rulings of the Court. As is characteristic of his approach to legal proceedings, I anticipate that Mr Nottingham will pursue all avenues of review and appeal and is unlikely ever to accept that what he did was not only unlawful, but reprehensible.

Strong words from Court of Appeal in the last paragraphs of (lengthy) judgement. "For the reasons we have set out we are sure of Mr Lundy’s guilt while placing no weight on the mRNA evidence. We do not think that the admission of that evidence led to an unfair trial."

Williams won a record payout in a High Court jury trial. However the judge had concerns about that verdict.

Craig took it to the Court of Appeal, which ruled earlier this year hat it was “satisfied that the jury’s award of both compensatory and punitive damages was excessive or wrong, and must be set aside accordingly.”

Today the Supreme Court granted leave to appeal that to Williams, and also leave to cross appeal was granted to Craig.

So it’s looking increasingly likely the only winners will be the lawyers.

New Zealand’s highest court will allow challenges to a court’s ruling that $1.27 million in compensation for a man defamed by former politician Colin Craig was “excessive or wrong”.

New Zealand Taxpayers’ Union executive director Jordan Williams sued Craig, the former Conservative Party leader, for defamation after Craig, in 2015, delivered 1.6 million pamphlets criticising Williams to homes across the country and held a press conference.

Williams sought compensatory damages of $400,000 and punitive damages of $90,000 for the remarks against him, and a further $650,000 in compensatory damages and $130,000 in punitive damages for the leaflets.

After a nearly four-week trial in the High Court at Auckland during 2016, a jury awarded Williams the full amount of his claim.

It was the largest amount awarded in damages for defamation in New Zealand’s legal history.

However, the Court of Appeal ruled this year that it was “satisfied that the jury’s award of both compensatory and punitive damages was excessive or wrong, and must be set aside accordingly.”

It suggested an appropriate amount would have been $250,000 for reparations and no more than $10,000 for punitive damages.

Today, the Supreme Court granted leave for Williams and Craig to appeal and cross-appeal the Court of Appeal’s decision.

So this is likely to take at least a few more months, if not longer.

In the meantime Craig is still waiting for a judgment on the judge only defamation he took against Cameron Slater, who also took an action against Craig.

A man who assaulted his wife, daughter and best friend in Queenstown after uncovering an affair has been convicted after the Crown appealed a decision to discharge him without conviction.

The High Court yesterday released its decision, which overturns a district court judge’s decision.

Justice David Gendall found Judge John Brandts-Giesen erred by allowing the 58-year-old man, who has name suppression, to be discharged after he admitted the assaults on September 14 last year.

Comments the judge made at the time of his decision had been “misguided”, “unfortunate” and attempted to normalise and minimise the offending and blame the victims, Justice Gendall said.

Judge Brandts-Giesen first erred because his assessment of the gravity of offending was “clearly wrong” and secondly because there was insufficient material before him to find the consequences of convictions were out of all proportion to the gravity of the offending, he found.

In the Queenstown District Court, Judge Brandts-Giesen had said it was a “nasty assault” on one level but on the other it “had to be seen in its context” and the defendant “saw red” when he discovered the affair.

He then said “there would be many people who would have done exactly what you did, even though it may be against the law to do so” and, later, that it was a situation “that does your wife no credit and the [male victim] no credit”.

That was widely criticised, and led to the police appeal.

Justice Gendall considered Judge Brandts-Giesen’s assessment of the gravity was “misguided” and said he appeared to have been influenced by the views of the defendant’s wife.

The “unfortunate” comments the judge made during the hearing also seemed to be “influential” in his reasoning, Justice Gendall said.

“[The comments] attempt, first, to normalise and minimise the respondent’s offending and secondly, to blame the victims here … In my view, this is quite wrong and it worked to significantly derail the judge’s assessment of the gravity … here.”

Justice Gendall granted leave for the appeal, set aside Judge Brandts-Giesen’s decision, entered convictions on all three charges and ordered the matter be remitted to the Queenstown District Court for sentencing on May 7.

“For the avoidance of doubt, the sentencing process approach is to be conducted entirely afresh.”

Discovering a partner has declared love for a friend would understandably be very upsetting, but the appeal by the police and this ruling have made it clear that resorting to violence is not a justified response and there must be legal consequences.

The Crown has applied for leave to appeal discharges without conviction granted to a man who assaulted his best friend, wife and daughter in Queenstown last year.

The 58-year-old Central Lakes man, who has name suppression, had earlier admitted assaulting his wife, daughter and best friend on September 14, having discovered a text between his wife and friend declaring their undying love for each other.

Ultimately, Judge Brandts-Giesen found the gravity of the man’s offending was low to moderate and the consequences of convictions were out of proportion.

A problem is that “low to moderate” violence can easily have serious unintended consequences, and can easily escalate into very serious situations.

At the time he said while on one level it was a ”nasty assault”, on another it had to be seen in context and there would be ”many people who would have done exactly what you did, even though it might be against the law to do so”.

That is alarming. He is excusing violent assault on a highly questionable “many people who would have done exactly what you did”. Many people have to deal with infidelity and relationship breakups, and the vast majority don’t lash out violently, and that sort of reaction should not be portrayed as a normal reaction by the Court.

The man left the bar when he saw the text message, but then encountered the male victim in the CBD.

He assaulted his friend and then when his daughter intervened he grabbed her around the throat, pushed her down and held her there, causing bruising.

When the defendant’s wife stepped in, he pushed her and she fell to the ground.

Ms Thomas submitted the matter ”became derailed” during the gravity assessment because Judge Brandts-Giesen appeared to consider the offending or surrounding circumstances ”unusual”.

”Infidelity of itself is not an unusual phenomenon in society.

”Nor, in my respectful submission, is the discovery of infidelity.

”Nor is it … in the context of domestic violence, or when assessing gravity, unusual that there may be actions arising … out of what’s seen as infidelity and the finding of infidelity.

”The sad reality … of domestic offending that the courts grapple with daily … is that it’s not unusual at all.

”The learned district court judge erred in … allowing mitigating factors to be taken into account … that he ought not to have.”

Having made that error, she submitted he erred further in assessing the consequences of convictions.

That will be for the appeal court to decide, if leave for appeal is granted – the High Court judge reserved his decision.

The defamation case Hagaman v Andrew Little has reached a conclusion in the Supreme Court, where an appeal on behalf of Earl Hagaman has been rejected.

In April 2017 a jury could not decide on some claims in a defamation case brought by Earl and Lani Hagaman against then Labour Party leader Andrew Little. The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

An appeal was filed, but not long after the trial (25 May) Earl Hagaman died.

Since then Lani Hagaman has tried to argue that an appeal should survive Mr Hagaman’s death, but has failed.

[1] Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.

Background

[2] Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to
upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six
public statements.

[3] The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege. The jury were agreed that
Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.

[4] The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.

[5] The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5. Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?
[YES]
6. If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?
[YES]
7. If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the first named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?
[NO ANSWER]
8. If the answer to issue 7 is “Yes”, then assess:
(iii) General damages $
(iv) Exemplary damages $
[NO ANSWER]

[6] The practical question we must decide is whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. We will now explain why this point matters.

When does an appeal in a defamation claim survive death?

[7] The old common law rule was that personal actions in tort (including defamation) abate upon the death of the plaintiff (or the defendant): actio personalis moritur cum persona. The rationale for the rule is that such an action is personal to the victim and his or her tortfeasor, and should not devolve to their estates. Professor Pollock called it a “barbarous rule”. The effect of the rule, as we will see, rather depended on the stage the claim had reached.

[8] The rule was abolished in part by statute in 1936, permitting the continuation of an action despite the death of a party.

[9] Defamation is excluded from the reforming effect of s 3(1). That simply means that the reform (creating a new statutory survival rule for other torts) does not apply to it. For defamation the old common law rule continues.

[10] Whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached.

Does Mr Hagaman’s appeal survive his death?

[14] We are concerned only with the second cause of action. Mr Tizard for Mr Little submits there is neither verdict nor judgment on that cause of action. It follows it has abated and the appeal must be dismissed. Mr Fowler QC for Mr Hagaman’s representatives submits that although there is no judgment, the cause of action does not abate because there is at least a verdict. He submits that the jury answers constitute a special verdict finding that Mr Hagaman was defamed by Mr Little.

[15] A special verdict is one where the jury is asked to respond with answers to a series of questions rather than simply stating whether they find for the plaintiff and in what amount.

[16] But an incomplete set of answers will not amount to a verdict for one party or the other. A verdict is a conclusive determination of all factual issues within a cause of action, for one party or the other. The verdict can then be perfected by entry of judgment. In defamation a verdict for the plaintiff must include the jury’s award of damages; otherwise it is incomplete and void.

[17] It is evident that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. This produced verdicts for Mr Little on the causes of action alleged by Mrs Hagaman. It also produced verdicts for Mr Little on the fifth and sixth causes of action alleged by Mr Hagaman. Here the jury, asked questionse, answered either that the words did not bear the meaning alleged or that the meaning was not defamatory. That meant, as the question trail makes clear, that the jury had no more work to do. The answers were complete, even though not all questions had been answered.

[18] The same cannot be said of the second cause of action. The jury’s work was incomplete. Having answered the first two questions affirmatively, they had to go on and answer the third. But they could not agree on it. That is not a special verdict, because there is no conclusive answer on that cause of action. No judgment upon it could be pronounced.

[19] It follows that no verdict was given on the second cause of action. It therefore abates with the death of Mr Hagaman. No appeal may now be advanced upon it. As the whole of the appeal is confined to that cause of action, it also follows that the appeal itself must be dismissed.

Result

[20] The appeal is dismissed.

[21] The appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

A bid by the late Earl Hagaman’s estate to continue a defamation case against former Labour leader Andrew Little has been dismissed by the Supreme Court.

Mr Hagaman – who died in May last year – and his wife Lianna-Merie sued Mr Little for statements made about a hotel contract.

A jury was not able to reach a conclusive verdict.

Mr Hagaman’s widow tried to continue the case, taking it to the Court of Appeal.

It ruled the case could not continue after Mr Hagaman’s death and the decision was taken to the Supreme Court.

The Supreme Court decision today said the arguments by Mr Hagaman’s representatives were not sufficient to warrant a retrial.

Mr Little has been awarded costs.

So a win and costs award for Little, but it will have (hopefully) been a lesson to him. He will obviously not want to be taken to Court again, especially now he is Minister of Justice and Minister for Courts.

In September last year a jury in the High Court at Auckland found Mr Craig had defamed Mr Williams and awarded Mr Williams damages of $1.27 million.

However earlier this year the court ruled that amount was unreasonably high, constituting a miscarriage of justice.

The highest previous defamation award was $825,000 granted to the Auckland accountant Michael Stiassny in 2008.

In her review of the case in April Justice Katz said the damages awarded were well outside any reasonable range by a significant margin.

So it has gone to appeal.

Jordan Williams’ lawyer, Peter McKnight told the Court of Appeal today that Justice Katz had not misdirected the jury and even if she did, it was not on a level requiring a retrial, as sought by Mr Craig.

“There was a very clear determination by the jury as to liability. It is suggested it would be a serious injustice to Mr Williams if he lost the advantages of those findings,” Mr McKnight said.

Justice Harrison questioned why the case had come before a jury in the first place.

“It should have been judge alone from the outset then we wouldn’t be in this mess.”

He also raised what should happen next if the Court of Appeal decides Justice Katz was correct to set aside the damages awarded against Colin Craig.

“Enough judicial resources have been wasted on it already and it would be most unfortunate to have to go through another trial.”

“What we want to know is do we have jurisdiction to order she has [the power] to settle all outstanding issues.”

A lot of time and court resources have gone into what is largely a political spat.

Williams’ lawyer, Peter McKnight, suggested the Court of Appeal could assess the damages, or another High Court jury could be asked to do so, using the first jury’s findings of facts, and hearing evidence only from Williams and Craig. Craig objected to having the trial judge set damages.

At the appeal hearing, one of the judges, Justice Rhys Harrison, said the court recognised the integrity of the jury’s verdict on Craig’s liability, and its provisional view was that Williams was entitled to that verdict unless the court was persuaded Justice Katz had made a wrong legal ruling on one of Craig’s potential defences.

Not surprisingly Williams wants it over as soon as possible, retaining the jury verdict and having damages set. Id that happens they are going to be less but could still be substantial.

Craig’s lawyer, Stephen Mills, QC, thought the case should be started again. The first jury’s decisions looked as if they had not followed the judge’s directions.

Mills said that, after the jury finished its work at the High Court in Auckland in 2016, Justice Sarah Katz had commented that the jury must have hated Craig to have decided as it did.

Mills said the judge had misdirected the jury about a possible defence, but he also agreed that it appeared the jury did not follow the judge’s directions in any event.

And Craig wants a new trial, giving him a second shot at winning, and at worst having the damages award reduce.

Jordan Williams has announced he is going to appeal the judgment to set aside the jury decision in the defamation case Williams v Craig, saying he doesn’t want witnesses to have to go through a new trial and an appeal is “the best way forward”. His other option was to walk away with nothing but a huge legal bill.

In general for the public I think this is a good path to take, as the Court of Appeal will help clarify issues of defamation and of appropriate awards.

In September 2016 a jury awarded Williams a total of $1.27 million having found that he was defamed on two counts by Colin Craig.

On count one, the jury ordered $400,000 be paid in compensation caused for the injury to Williams’ reputation and feelings and $90,000 in punitive damages for Craig’s “flagrant disregard” of Jordan’s rights.

On count two, they ruled Craig pay $650,000 in compensation and $130,000 in punitive damages.

At the time Nick R (a lawyer) commented at Kiwiblog:

Court of Appeal can reduce any award of damages it considers to be manifestly excessive. It has done so before for jury awards in defamation cases. The CA has previously indicated that damages in defamation cases in NZ should be modest in the absence of evidence of actual pecuniary loss. That’s why I expect them to reduce this award, potentially by quite a lot.

Immediately following the verdicts Craig’s counsel requested that Judge Katz defer entering judgment as they intended applying to have the jury’s verdict set aside, so the judge deferred entering judgment.

Craig’s counsel subsequently applied to have the verdict set aside, and six months later, on 12 April 2017, Judge Katz delivered a judgment ruling that the damages awards were so high that they constituted a miscarriage of justice.

[109] …I am satisfied that the damages award is well outside the range that could reasonably have been justified in all the circumstances of the case. The consequence is that a miscarriage of justice has occurred. The jury’s verdicts must therefore be set aside and a retrial ordered, unless both parties are willing to consent to my substituting a new damages award in place of the jury’s award.

Result

[112] The parties are to file memoranda by 3.00 pm on Wednesday 26 April 2017 advising whether they consent to the Court substituting its own award of damages for the jury’s award, pursuant to s 33 of the Act. If confirmation is not received by that date that both parties consent to such a course, then I order that the jury’s verdicts be set aside and the proceedings be set down for a re-trial on the first available date that is convenient to senior counsel.

Craig immediately indicated he would not consent to the Court substituting it’s own award of damages, and it has now been confirmed that he has advised the court that he wouldn’t consent, and Williams put out a press release saying he didn’t want another trial, but would instead appeal Judge Katz’s judgment.

Mr Williams says, “Colin Craig argued that the jury’s damages award was too high. The judge agreed but the High Court is only able to reset the damages if both parties agree.”

“Last week Colin Craig’s lawyers told Justice Katz that Colin Craig was not willing to have her determine the damages; they want a full retrial.”

“I don’t want Rachel MacGregor or my mother or any other of my witnesses to have to go through it all again. The jury made clear findings. At every stage Mr Craig has wanted to stretch things out. We have no assurance he would not appeal after a new trial. So an appeal now could get to the key issues directly. It is the best way forward.”

It probably is the best way forward for Williams, but it has risks.

A new trial would presumably mean that there was no way that Williams could recover any costs from the first trial, and a new award would likely be significantly lower given Judge Katz’s judgment. Williams’ counsel would have had to seriously consider claiming significantly lower damages to avoid a repeat of the first trial.

Craig said Williams had every right to appeal, but he believed a retrial was the right way forward.

He said Justice Katz’s decision said a miscarriage of justice had occurred so he was not willing to accept the jury’s decision he had defamed Williams.

But Judge Katz said that the miscarriage of justice was due to the damages award being “well outside the range that could reasonably have been justified in all the circumstances of the case”, the Judge did not reject the jury’s decision that Craig had defamed Williams.

[110] In relation to Mr Craig’s second ground of challenge to the jury’s verdicts, I reject the submission that there was no evidence, or insufficient evidence, to support the jury’s finding that he had lost his qualified privilege…As a result, there is no basis for entering judgment in favour of Mr Craig (as opposed to ordering a retrial).

So on to an appeal. The Court of Appeal is limited on what it can rule on, I think just on points of law in the judgment. So presumably Williams will ask for the setting aside to be overruled. I don’t know if the amount of damages can be changed on appeal, or if it’s an all or nothing situation.

Judge Katz took months before delivering her Judgment, and is likely to have anticipated a likely appeal, so is likely to have taken a lot of care in her Judgment. That doesn’t rule out having made a mistake in law, but it may narrow the grounds for appeal.

In the meantime there is one other matter from her judgment that I don’t know if it is still relevant or not, costs.

[113] This outcome is likely to raise some difficult costs issues. Leave is accordingly reserved to file costs memoranda in relation to both the trial and the present application, if costs cannot be agreed. Any memorandum on behalf of Mr Williams is to be filed by 5 May 2017. Any memorandum on behalf of Mr Craig is to be filed by 19 May 2017. Counsel are to indicate in their memoranda whether a hearing is sought in respect of costs.

I have no idea what can or may happen with this, given the verdict has been set aside. Perhaps we will find out next month. Or perhaps it will have to wait for the outcome of the appeal.

Yesterday Lani Hagaman said that she favours a retrial in her and her husband Earl’s defamation claim against Andrew Little, and she may also appeal the finding on qualified privilege. This may be dependent on how long Earl stays alive.

Andrew Little wants to try to focus on campaigning for this year’s election.

In a statement, Mrs Hagaman said she had been advised the court would automatically arrange for the a retrial after the jury in the first trial was unable to reach a verdict on several of the six claims of defamation lodged by Mr Hagaman.

“While Earl is still alive I believe that it is important that every effort is made to bring his claims to completion, and I intend to do so.”

Mrs Hagaman also expected to appeal Justice Karen Clark’s decision to grant Andrew Little the defence of qualified privilege – a defence Little said was because of his “moral duty” as leader of the Opposition to question the Government.

“Because the jury was unable to reach verdicts on several of Earl’s claims, I am advised that the court now arranges automatically for those claims to be retried.

“The jury also reached a verdict that Earl was defamed by Andrew Little. However, contrary to the finding of the court on qualified privilege, my legal advice continues to be that Mr Little was not entitled to protection by that.

“As this matter remains unresolved, I believe it requires clarification.”

Clarification would help in a legal sense, but neither a retrial nor an appeal will help Little in a political sense.

Labour leader Andrew Little said he had seen Mrs Hagaman’s statement seeking a retrial.

“I have taken every opportunity to resolve this matter and I have faced up to my responsibilities.”

He said his priority now was the election and issues such as housing and health.

“Fixing these problems means changing the Government and that is my focus.

“As this matter could be subject to further court proceedings, I will not be commenting further.”

Little’s political future will depend to an extent on how long Earl Hagaman remains alive.

A retrial is unlikely before the election. I don’t know long it will take to have an appeal. But either hanging over Little over the next few months will be an unwelcome distraction for him.